THE LAW AND VIOLENCE AGAINST WOMEN INTRODUCTION

March 14, 2013

THE LAW AND VIOLENCE AGAINST WOMEN INTRODUCTION – MR KAYODE ADEMUWAGUN

Team Wellbeing advocates for your support for The Petition for the passage of a Law to prohibit Violence against Persons, please lend a voice to the Passage of the BILL HERE

I don't know who here knows that there are no laws against domestic violence in Nigeria, what we have is a United Nations' charter that we as a country is a signatory to, and thereby taking pieces of that charter and infusing them into our legal system, but on a close examination we will notice that some of the provisions of that charter does not cover a lot of aspects that affect our society, it is in that light that The Wellbeing Foundation in coalition with other Organizations that are out to Eliminate domestic violence are pushing out a bill to eradicate Domestic Violence in our dear country, I have attached herein a document that discusses domestic violence in Nigeria and the law, I will also add links to other articles that will enlighten you on the issue, we have a petition here that will need signing so we can present to the National assembly for the passage of a Law against domestic violence.

If you are against Domestic Violence click here to Sign the petition.

THE LAW AND VIOLENCE AGAINST WOMEN INTRODUCTION – MR KAYODE ADEMUWAGUN

I very much recognize the great honour done to me by being asked to deliver a paper on this topic. I am especially grateful to Executive Director of Project Alert on Violence against Women and the entire members of staff of the organization. My gratitude also goes to my colleagues in the office for their contributions and above all to our Lord Jesus Christ for making it possible for me to be here today.

The topic “The law and Violence against Women” is so timely today because of the unfolding events that have been happening in our nation Nigeria today. The Newspapers are today replete with one form of violence on a woman or the other. This has attracted screaming headlines and editorial comments.

From the high to the lowly in the society. We have read of an honourable member of the Senate slapping another female member and sometime last week another “Honourable” member of Lagos State House of Assembly slapped a female banker which led to a mass peaceful protect by fellow women to the State House of Assembly.

Acts of violence against women these days ranges from rape, incest child sexual abuse, forced prostitution, sexual harassment, physical assault, acid bath, harmful traditional practices (widowhood rites, female genital mutilation, male child preference, economic deprivation, neglect and abandonment) etc.

This seminar paper is just the beginning and it aim is to focus attention on the provisions of the law as it relates to violence on women to ultimately amend the existing laws or promulgate new ones design to give a better protection to women.

In attempting to do justice to the topic, we shall do the following:

a. Defining the concept of Laws, Violence and Women.

b. Check the specific provisions of our laws that burdens on the protection of women against violence and discuss the position of the courts in their interpretative roles on those laws.

c. The way forward.

A. DEFINITION OF THE CONCEPTS:

i. Law; the word law is defined as the aggregate of legislation, judicial precedents and accepted legal principles, the body of rules, standards and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.

ii. Violence; the use of physical force usually accompanied by furry, vehemence or outrage especially physical forces unlawfully exercise with the intent to harm.

iii. Woman; an adult female, lady or a girl.

From the above definitions of specific words of the topic at hand, one can conveniently state that the topic deals with the aggregate of legislation, judicial precedents that a court will apply in deciding a complaint of the use of unlawful physical force accompanied by fury with intent to harm a woman, girl or a lady.

B. PROVISIONS THAT RELATE TO PROCTION OF WOMEN AGAINST VIOLENCE

It should be noted from onset that there is no single all-encompassing statute that deals with the subject; violence against women unlike what obtained in United States where they use to have Violence Against Women Act which was a Federal Statute that established a Federal Civil Rights Action for victims of gender motivated violence. Even then, this statute was unfortunately invalidated in year 2000 by the Supreme Court of that country in the case of United State V. Morrison 529 U.S. 598 on the ground that the congress was not authorized by the necessary amendment to the constitution to enact the law.

These laws are scattered in our local legislations and we will take time to check some of the provisions of these enactments.

i. In the preamble to the United Nations Charter, members are enjoined to respect the fundamental human rights, the dignity and worth of the human persons and the equal rights of men and women. Article 1(3) of the charter promotes and encourages the respect for human rights for all without distinction on account of sex.

Nigeria being a signatory to the above charter and several other conventions of the United Nations is bond by the provisions of the charter and the conventions.

It gladdens one’s heart to note that most of the provisions of these United Nations conventions have found their ways into our local legislations. For instance section 42(1) of the 1999 constitution states

“A citizen of Nigeria of a particular community ethnic group, place of origin, sex, religious shall not by reason only that he is such a person.

a. Be subjected either expressly by or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other

communities, ethnic groups, place of origin, sex, religious or political opinions are not made subject; or

The most far reaching international convention to which Nigeria is signatory is the Convention on the Elimination of all forms of Discrimination against Women which came into force in 3^rd of September, 1981.

ii. FAMILY LAW: Before the Matrimonial Causes Decree of 1970 which was greatly influenced by the English Divorce Reform Act, the concept of cruelty is a specific and sufficient ground for divorce but it will appear that same has been abolished since the dissolution of marriage are now granted solely “upon the ground that the marriage has broken down irretrievably by virtue of S. 15 of the Marriage Act.

It is gratifying to note that S. 16(e) of the act states as follows:

Since the marriage and within a period of 1 year immediately preceding the date of the petition the respondent has been convicted of -

i. Having attempted to murder or unlawfully to kill the petitioner or

ii. Having committed an offence involving the intentional infliction of grievous hurt on the petitioner.

The condition is now more difficult because the petitioner will prove the conviction of the respondent.

S. 15(2) provides:

Since the marriage, the respondent has behaved in such a way that the petitioner cannot be reasonably be expected to live with the respondent.

It should be noted that in determining a behaviour, that the petitioner will be found unreasonable, account must be taken of the social norms prevalent in the society. What will be unreasonable behaviour in England might be seen as reasonable in Nigeria.

Professors Kasumu and Solacuse have observed as follows; in their Nigerian family law: “it is, however submitted that the local culture, values and social conditions must be taken into consideration in deciding whether a particular conduct is grave and weighty. If this is done, the occasional chastisement of a wife might not necessarily amount to cruelty. Since such conduct by the husband, so long as it is reasonable, is tolerated”.

The standard test here is that of a “reasonable man” in Nigeria.

In the case of Oyinlola V. Oyinlola the Ibadan High Court examined the habit of the respondent bringing friends to visit without first notifying or consulting with his wife. Somolu J has this to say:

“This complaint seems to me to be rather childish indeed and the petitioner in raising it does not seem to take into consideration the reality of life in this country to the effect that friends and relations often come into the house either on a brief visit or fairly long stay without prior notice. It will be an extreme of bad manners to turn them back or out. And to insist that they must give prior notice is to lay the house holder open to a charge of arrogance and callousness or what you like. It is only in the process of education that can help to modify this attitude in the people and until that change come, it is my view that all people in this part whether married or not must put up with it as best as they can. It may be inconvenient or an embarrassment but to make it a charge in a matrimonial suit is to exhibit an attitude of prudery which I find difficult to understand in a woman of the background of the petitioner. What does she want? She wants to

live the life of an European in Africa, and demand that her visitor should give prior notice and fix time for it”.

iii. FUNDAMENTAL HUMAN RIGHTS.

One cannot but agree with the position that some of our traditional beliefs are not only dehumanizing to women but are outrightly barbaric. Example of such includes, female genital mutilation, some funeral rights etc.

When a man dies, the surviving wife is always subjected to unnecessary dehumanizing funeral rights. Every hair on her head is shaven and restricted to the recesses of an inner chambers for months forbidden from seeing sunshine, denied the use of water for days running from 7 to 14 days depending on the part of the country the husband comes from.

In the case of Theresa Onwo V. Nwafor Oko & 12 Ors 1996, 6 NWLR Pt. 456 at P. 584, the appellant lost her husband and was compelled to perform some funeral rites by her in-laws including the shaven of her hair. This was done against her wish and her religious believe. She approached the court to enforce her fundamental human rights as to the right to the dignity of her person.

The High Court held that such rights cannot be enforced against individuals but the Court of Appeal upturned the decision and held that the applicant’s right to personal dignity has been violated and that she is entitled to remedies.

iv. CRIMINAL CODE

a. INDECENT ASSAULT DEFILEMENT AND RAPE;

All of the above stated crimes are sex related offences to protect an unwarranted assault on women.

The provisions of S. 360 of the Criminal Code provides for the offence of indecent assault as follows:

“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor and liable to 2 years imprisonment”.

To succeed in this area of the victim must prove that assault and that it was accompanied by circumstances of indecency on the part of the accused towards the person assaulted. Doctor Akinola Aguda in his book Criminal Law and procedure in Southern Nigeria said Kissing a girl against her will accompanied by a suggestion that sexual intercourse or sexual activity should take place between her and the defendant is an indecent assault.

S. 218 of the Criminal Code relates to the offence of defilement; It provides as follows; “any person who has unlawful canal knowledge of a girl under the age of 13 years is guilty of a felony and is liable to imprisonment for life with or without canning”.

Rape is statutorily defined by S. 357 of the criminal code as “unlawful canal knowledge of a woman or girl with or without her consent or if the consent is obtained by force or by means of false and fraudulent misrepresentation as to the nature of the act or in the case of a married woman by personating her husband”. The offence is punishable with life imprisonment with or without whipping. On the face of this law, it will appear that a woman has been given all that she wants but when it comes to establishing this crime by a

woman against her assailant, a lot of unnecessary hurdles have to be crossed amongst which are;

a. There must first be the proof of penetration.

b. Penetration must be linked to the accused.

c. Penetration must be without the consent of the girl.

d. Corroboration.

Sunday Jegede V. the State (2001) 7 SC (Pt. 1) P. 122

Iko V. State (2001) 7 SC (Pt 11) P. 115

ASSAULT

S. 252 of the Criminal Code defines assault as follows:

“A person who strike, touches or moves, or otherwise applies force of any kind to the person of another either directly or indirectly, without his consent or with his consent if the consent is obtained by fraud or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person and the act is called an assault.”

From the above definition, one can see that even though, this offence is not gender related but women can be protected against domestic violence by virtue of this section of the law.

The problem is as beautifully couched, as this section of the law is, there are over 35 exceptions under which assault can be justified as long as it is not excessive.

Amongst these exceptions are: provocation, prevention of repetition of insult, self defence etc.

CONCLUDING REMARKS

In a paper of this nature, the constraint of time will not allow one to be exhaustive enough but the whole essence is to prick your conscience and challenge us for further studies on ways to improve on the administration of our justice system. I will like to draw some words of wisdom from Lord Alfred Dennin in his book Road to Freedom:

“It is no use having just laws if they are administered by bad judges or corrupt lawyer. A country can put up with the laws that are harsh and unjust so long as they are administered by just judges who can mitigate their harshness or alleviate their unfairness.”

On the account of the very commendable works of women organizations like Project Alert on Violence against Women, one cannot but salute the courage and boldness of some few Nigerian women / men who notwithstanding the unfavourable situations have admirably brought into limelight the plight of Nigerian women.

Despite this laudable achievement, they ought to realize that there is always room for improvement. They must therefore continue to soldier on so that justice can always be done at all times.

In this connection, they must strive to do the following:

a. They must see themselves as social engineers and determined fighters for freedom and right of women.

b. They must be constantly alive to law reform by putting across proposals to change the law where appropriate.

c. They must preach at every available opportunity on the danger of violence against women.

d. They must be able to always catch up with the dynamics of our ever changing society.

Thank you.